Rowe v. Godfrey , 16 Me. 128 ( 1839 )

The opinion of the Court was by

Emery J.

The counsel for the defendant objects to the admission of the “ depositions of Samuel Getchell and Robert Getchell, so far as respected the answers to certain questions put by the plaintiff as being leading. He does so,” as he says, “ because he apprehends injustice has been done to his client, and because he wishes the Court to discountenance the practice,” and he declares that the “ future reputation of the Penobscot bar demands it, that the practice is to be arrested, or a witness is to be reduced to the position of an automaton, governed and controled solely by the pulleys and wires attached to him and the counsel.”

Attempts to lead a witness to communicate false impressions of facts to a court or jury call for severe animadversion. It is not to be doubted that questions are proposed which are characterized as leading. Such questions, when seasonably and properly presented to the consideration of the court by objection, are rejected for that cause. Still the great object of examination in chief and cross ex-atnination of witnesses is to extract the truth. The superiority of the personal presence of a witness before the tribunal, finally to decide on the effect of his testimony, over the written statement in depositions, for eliciting truth, is with us, in common law proceedings, universally acknowledged. It has, however, long been deemed requisite for the administration of justice in civil cases to resort to written depositions. To a certain extent all examinations in a certain sense, must be leading. The best settled forms of interrogatories begin with inquiries, helping to obtain the description of the witness, his acquaintance with the parties, and the subject of controversy. Some indulgence must be allowed to direct the mind of the witness to the developement of all that he knows hearing on the issue to be tried. For courts have not favored motions for new trials on account of omissions fully to interrogate a witness, and extend but little charity to the want of a witness’ recollection of matters connected with the merits, when he is on the stand, and a fair opportunity given to test his perception and memory of what he is called to relate, because of the great danger of pretended want of recollection at an after period. Whether testimony be produced on the stand, or in depositions, it is highly proper in examination in chief, that purely leading questions should be prevented ; though “ it is not a very easy thing to lay down any precise general rule as to leading questions.”

In 2 Stark. Rep. 105, 110, Rex v. Watson, on its becoming necessary on the part of the crown to identify three other prisoners, charged in the same indictment with the prisoner, Watson, it was objected, that the attention of the witness was too directly pointed to them. But the court held that the counsel for the prosecution might ask in the most direct terms, whether any of the prisoners was the person meant and described by the witness.

And in United States v. Gibert & al. 2 Sumner, 92, it was objected that the witnesses for the government were allowed, with the chart of the Mexican’s route on her voyage before them, to be asked the question, whether under the circumstances stated of the supposed time of starting of both vessels, the Mexican and Panda would or would not be likely to meet at the point marked on the chart The objection proceeded on the ground that under the circumstances the question became the leading question. Mr. Justice Story declared “ his opinion that the objection was unfounded in law. The chart of the Mexican was already in the case. It was the true and appropriate question which the witnesses were called upon to solve in the negative’or affirmative according to their own skill, judgment and experience in nautical affairs. The form of the question could not lead them, and it could not mislead them.”

Where the question was so framed as to indicate particularly the answer which the plaintiff wished, as in 6 Binney’s II. 483, Lessee of Snyder & al. v. Snyder, “ the words were,” by the court, said to be “ put into the witness’ mouth.” The question was, £< did said Bower assign to you as a reason why he would not bid more for the Isle of Cue, that he could buy Billing’s land for £3 an acre, and that in yearly instalments, which in his opinion was equally good with the Isle of Cue ?” Answer: “ He did tell me so, but I can’t tell at what time.” By Tilglman & Brcckenridge the objection was holden to be good.

It would certainly seem in the present case, that the 4th and 5th interrogatories to Samuel Qetchell, and the 6th to Bobert Getchett, were nearly’ as objectionable. In 2 Starkie R. 65, Nichols v. Dowdy & Kemp, Lord Mlenborough says, if the answers yes or no would be conclusive, the question would be objectionable, but in general, no objections are more frivolous than those which are made to questions as leading ones.

But the inquiry still returns, notwithstanding the interrogatories were deserving of the severe animadversions which they have received from the defendant’s counsel, whether there is for that reason cause for opening the action to another trial. It is to be recollected that the defendant was duly notified of the taking of these depositions but did not attend. We must therefore regard the neglect to attend as voluntary. And we cannot, under these circumstances, extend to him any greater advantages than we should if he had attended. Had he been present, and without objection, permitted the questions to be propounded, he would have been precluded from availing himself of the objection at the trial. By his interposing an objection before the justice, the question might have been varied, and addressed to the wutness in a form free from any objectionable character. It is too late. 7 Greenl. 181, Woodman v. Coolbroth, and cases there cited.

In Stratford v. Sanford, 4 Conn. R. second series’, 275, the question came up directly. And the Chief Justice, Hosmer, observed “ as a general rule, leading questions are not allowed on the examination in chief. Yet if the witness appears to be in the interest of the other party, or unwilling to give evidence, the Court will, in its discretion, permit the examination in chief to assume the form of a cross examination. 1 Phil. Ev. 205; 1 Stark. Ev. 122, 127. It is then not a peremptory and exclusive rule, but is always subject to the Court’s discretion, and in all events is not a ground for a new trial.”

We do not perceive that injustice has been done to the defendant by the verdict of the jury, nor any call for the exercise of discretion to set it aside. We overrule the exceptions.

Judgment on the verdict.